13 Hous. J. Health L. & Policy
Copyright © 2012 Kasi Chadwick
Houston Journal of Health Law & Policy
ISSN 1534-7907
103
AN OVERVIEW OF THE IMPLICATIONS OF
THE PATIENT PROTECTION AND
AFFORDABLE CARE ACT FOR LOW-INCOME
HISPANICS IN TEXAS: A CASE FOR CROSSBORDER HEALTH CARE MODELS
Kasi Chadwick*
ABSTRACT
Health reform, especially health reform in Texas, may not result
in a system that allows access for all. This paper outlines how, in
Texas, those remaining uninsured even after the implementation of
the Patient Protection and Affordable Care Act will likely be lowincome Hispanics. A solution is proposed in cross-border health
models that utilize the inexpensive health care market in Mexico.
I. INTRODUCTION
In 2010, President Obama signed the Patient Protection and
Affordable Care Act (“ACA”) into law. Devised to provide quality,
affordable care for all Americans,1 the ACA aims to strengthen the
health care system. However, aiming to control health care costs, the
ACA contemplates a major overhaul of the health care system in the
*
Doctor of Jurisprudence, University of Houston Law Center, 2013
1
Patient Protection and Affordable Health Care Act, 26 U.S.C. Title I (2011), available at
http://www.healthcare.gov/law/full/index.html.
104
HOUS. J. HEALTH L. & POL’Y
United States,2 and has become one of the most polarizing
government initiatives of its time.
Because the ACA will be implemented gradually, it is too soon to
judge conclusively the effectiveness of the Act. However, it is
estimated that 23 million Americans will remain uninsured after the
ACA is enacted.3 In Texas, implementation may be particularly
challenging, and with respect to low-income Hispanics in Texas,
nearly ineffective.
First, the insurance status quo for Hispanics in Texas is one of the
worst in the nation.4 Up to thirty-eight percent of Hispanics Texans
are uninsured.5 Further, the Texas health care system does not
effectively address health issues that primarily affect Hispanics. In a
study examining quality of health care offered by state, Texas
performed “very weak” in both diabetes measures and preventative
care measures;6 health issues that disproportionately affect Latinos.7
The Supreme Court’s decision in National Federation of
Independent Business v. Sibelius,8 coupled with Texas Governor Rick
Perry’s refusal to expand Medicaid or create a state insurance
2
Reducing Costs, Protecting Consumers: The Affordable Care Act on the One Year Anniversary of
the Patient’s Bill of Rights, 1, 1, 12 (Sept. 23, 2011), available at
http://www.healthcare.gov/law/resources/reports/patients-bill-of-rights09232011a.pdf
3
Robert Wood Johnson Found., Health Policy: Health Insurance Coverage,
http://www.rwjf.org/healthpolicy/coverage/fastfacts.jsp (last visited Oct. 18, 2012).
4
U.S. Dep’t of Health and Human Servs., Best Performing States Across All Measures in Overall
Health Care, http://statesnapshots.ahrq.gov/snaps11/overall_quality.jsp?menuId=5&state=
TX&level=0&region=0&compGroup=N&compRegion=-1 (last visited Oct. 18, 2012).
5
Kaiser Found., Uninsured Rates for the Nonelderly by Race/Ethnicity, states (2009-2010), U.S.
(2010), http://statehealthfacts.org/comparetable.jsp?ind=143&cat=3 (last visited Oct. 18,
2012).
6
Agency for Healthcare Research and Quality, U.S. Dep’t of Health and Human Servs.,
Texas:
Dashboard
on
Health
Care
Quality
Compared
to
All
States,
http://statesnapshots.ahrq.gov/snaps11/dashboard.jsp?menuId=4&state=TX&level=0
(last visited Oct. 18, 2012).
7
Ctr. Am. Progress, Texas Puts Latinos’ Health at Risk: How Opting Out of the Medicaid
Expansion Will Affect the State’s Hispanics, http://www.americanprogress.org/issues/2012/
07/texas_medicaid.html/ (last visited Oct. 18, 2012).
8
Nat’l Fed’n of Indep. Bus. v. Sibelius, 132 S. Ct. 2566, 2572, 183 L. Ed. 2d 450 (2012), (heard
together with Florida v. Dep’t of Health and Human Servs., 648 F.3d 1235 (11th Cir. 2011)).
KASI CHADWICK
105
exchange9, are particularly bad for Texas Hispanics. Further, the
ACA has structural “glitches” that will likely disproportionately
affect Hispanics. And most saliently, previous studies of health
reforms already implemented in Massachusetts suggest Hispanics
were the ethnic group most likely to remain uninsured even after the
reforms.10 This paper discusses how Hispanics may be excluded in
Texas as well.
Including Hispanics into the reformed health care system will be
a necessity if affordable care is to be achieved systemically.
According to the Kaiser Foundation, “the adequacy of assistance will
be a key determinant of how many people will gain coverage and
whether or not lower income people will be able to use the health
insurance they obtain.”11 Affordability will affect compliance with
the individual mandate, and without broad compliance, it would be
difficult to maintain the proposed insurance reforms that depend on
broad risk pools.12 As such, including Hispanics in the Texas health
system is necessary for the success of the ACA in Texas.
Previous studies of health reform suggest, “[w]ithout specialized
tools. . .the widespread disparities in coverage and access to care in
the current system may be reduced, but they are not likely to be
eliminated.”13 In considering the effects of the recent development in
the ACA implementation, the pathologies of the ACA itself, and
health reform initiatives in Massachusetts, cross-border health
models (“CBHM”) could serve as one of these “specialized tool[s]” in
Texas.
9
Manny Fernandez, Texas Counties Fear Residents Will Pay the Price of Perry’s Medicaid Rebuff,
N.Y. TIMES, JULY 17, 2012, available at http://www.nytimes.com/2012/07/18/us/texascounties-fear-cost-of-medicaid-rebuff.html.
10
See James Maxwell et al., Massachusetts’ Health Care Reform Increased Access to Care for
Hispanics, But Disparities Remain. 30 HEALTH AFFAIRS 1451, 1457 (2012).
11
The Henry J. Kaiser Found., Explaining Health Care Reform: Questions About Health Insurance
ON
HEALTH
REFORM,
July
2012,
at
1,
available
at
Subsidies,
FOCUS
http://www.kff.org/helathreform/upload/7962-02.pdf.
12
BOWEN GARRET ET AL., TIMELY ANALYSIS OF IMMEDIATE HEALTH POLICY ISSUES PREMIUMS
COST-SHARING SUBSIDIES UNDER HEALTH REFORM: IMPLICATIONS FOR COVERAGE, COSTS,
AFFORDABILITY
(Dec.
2009),
available
at
AND
http://www.urban.org/uploadedpdf/411992_health_reform.pdf.
AND
13
Maxwell et al., supra note 10, at 1458.
106
HOUS. J. HEALTH L. & POL’Y
I do not purport to have identified all problems in the ACA
implementation rubric as to the inclusion of Hispanics in the Texas
health care system. As the ACA is implemented, it is my hope that
these and other problem areas to be identified in the future will be
addressed in order to best create a health system that allows greater
access to all Americans.
II. RECENT DEVELOPMENTS: MÁS MEDICAID?
On the last day of the 2011-2012 term, the United States Supreme
Court decided National Federation of Independent Business v. Sibelius,14
where the Court agreed to consider the constitutionality of both the
individual mandate and the issue of Medicaid expansion. As a result,
because the decision to expand Medicaid eligibility is now within
each state’s discretion, this creates uncertainty for millions of lowincome Americans.15
As the ACA was originally designed, Medicaid eligibility was
expanded to all people with incomes up to 133 percent of the poverty
line—$14,856 for individuals and $30,657 for a family of four.16 It was
estimated that this expansion would extend coverage to 17 million
Americans.17
The Court found the mandated Medicaid expansion
unconstitutionally coercive as to the states. The Court ruled that this
expansion created the existence of an entirely new program, and
Congress was not allowed to condition the receipt of a state’s existing
federal Medicaid funds on its agreement to expand Medicaid
14
Nat’l Fed’n of Indep. Bus. v. Sibelius, 132 S. Ct. 2566, 2572, 183 L. Ed. 2d 450 (2012) (heard
together with Florida v. Dep’t of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011)).
15
Maura Calsyn & Emily Oshima Lee, Interactive Map: Why the Supreme Court’s Ruling on
Medicaid Creates Uncertainty for Millions of Americans, CENTER FOR AMERICAN PROGRESS,
http://www.americanprogress.org/issues/2012/07/medicaid_expansion_map.html (last
visited Nov. 12, 2012).
16
Increased
Access
to
Medicaid,
HEALTH
CARE
AND
YOU,
http://www.healthcareandyou.org/what-is/more-americans/ (last visited Oct. 6, 2012).
17
Douglass W. Elmendorf, CBO’s Analysis of the Major Health Care Legislation Enacted in March
2010, CONGRESSIONAL BUDGET OFFICE, (Mar. 30, 2011, 10:00 AM (EDT)),
http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30healthcarelegislation.pdf.
KASI CHADWICK
107
eligibility. Chief Justice Roberts joined by Justices Breyer, Kagan,
Ginsburg and Sotomayor, held that the individual mandate is a
constitutional exercise of Congress’ power to levy taxes. Article I,
Section 8 of the U.S. Constitution provides, “Congress shall have
Power. . . to lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defense and general Welfare
of the United States.” The expansion of Medicaid was not so lucky.
While the Court has long recognized that Congress may attach
conditions on the receipt of federal funds that it disburses under its
spending power, the Court found this reason insufficient to uphold
the expansion of Medicaid. In dicta in both Charles C. Steward
Machine Co. v. Davis18 and in South Dakota v. Dole,19 the court
suggested there could possibly be a case in which a financial
inducement offered by Congress could pass the point at which
permissible pressure on states to legislate according to Congress’
policy objectives crosses the line and becomes unconstitutional
coercion. The Court considered the expansion of Medicaid as
crossing this line because states did not have adequate notice to
voluntarily consent, and the Secretary could withhold all existing
Medicaid funds for state non-compliance. The Court thus
circumscribed the Secretary’s enforcement authority, and left the rest
of the ACA in tact.20
a. Texas on Track to Reject Medicaid Expansion
Now states are free to reject the expansion without fear of losing
any of their federal Medicaid funding. Though this decision has been
highly criticized,21 Texas appears to be on track to reject Medicaid
expansion. Recently, Governor Rick Perry of Texas wrote a letter to
Kathleen Sibelius stating that Texas would neither expand Medicaid
18
Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937).
19
S.D. v. Dole, 483 U.S. 203, 210-11 (1987).
20
Mary Beth Musumeci, A Guide to the Supreme Court’s Affordable Care Act Decision, THE
HENRY
J.
KAISER
FAMILY
FOUNDATION,
(Jul.
2012)
http://www.kff.org/healthreform/upload/8332.pdf.
21
State Senator Rodney Ellis (D-Houston), Ellis: Perry Affordable Care Act Plan Short-Sighted
ST.
SENATE,
(Jul.
9,
2012),
and
Not
the
Final
Word,
TEX.
http://www.senate.state.tx.us/75r/Senate/members/dist13/pr12/p070912a.htm.
108
HOUS. J. HEALTH L. & POL’Y
eligibility nor create a state exchange. Stating he “will not be party to
socializing healthcare and bankrupting
[Texas] in direct
contradiction to [the] Constitution and [the] founding principles of
limited government,” Governor Perry attacked the central pillars of
the ACA.22
In Texas, Hispanics will likely be affected the most by this
decision.23 According to the 2010 United Sates Census Texas is home
to 9.5 million Hispanics; roughly 19 percent of the Hispanic
population in the United States.24 Hispanics represent 37.6 percent of
the entire Texas population.25 Even though Hispanics are a dominant
ethnicity in Texas, 37 percent of Hispanics go without health
insurance as compared to 13.5 percent of whites.26 It is estimated that
Medicaid expansion would have allowed approximately 2 million
uninsured Texans to gain access to the healthcare system.27 Many of
these would have been Hispanics.28
22
Michael Muskal, Texas Rejects Two Pillars of New Federal Healthcare Overhaul, L.A. TIMES (Jul.
9, 2012, 12:24 PM) available at http://www.latimes.com/news/nation/nationnow/la-na-nntexas-rejects-federal-healthcare-20120709,0,5870338.story.
23
Jennifer Witte, Texas Puts Latinos’ Health at Risk: How Opting Out of the Medicaid Expansion
Will Affect the State’s Hispanics, CTR. FOR AM. PROGRESS (July 19, 2012),
http://www.americanprogress.org/issues/2012/07/texas_medicaid.html.
24
Sharon R. Ennis et al., The Hispanic Population: 2010, 2010 CENSUS BRIEFS (May 2011),
available at http://www.census.gov/prod/cen2010/briefs/c2010br-04.pdf.
25
Id. at 6.
26
The
Uninsured
in
Texas,
TEX.
MED.
ASS’N
http://www.texmed.org/templateprint.aspx?id=5517 (last visited Jun. 14, 2012).
27
Anne Dunkelberg, Texans Need Real Solutions to Our Health Care Needs, CENTER FOR PUBLIC
(Jul.
9
2012),
available
at
PRIORITIES
http://cppp.org/files/3/HC_2012_07_ST_Gov_Medicaid.pdf.
POLICY
28
Witte, supra note 23.
,
KASI CHADWICK
109
II. “GLITCHES”29 IN THE ACA: ROUTES TO COVERAGE UNDER THE
ACA & COST PROBLEMS FOR FAMILIES
As the ACA individual mandate was upheld by the Supreme
Court, all U.S. citizens and legal immigrants will be required to
maintain “minimum essential [health insurance] coverage”30
Coverage may be attained through the private insurance market,
newly formed state or federal health exchange markets, government
assistance programs like Medicaid, or through an individual’s
employer.31
However, only a few of these routes to coverage are actually
viable for uninsured Hispanics. As noted above, because of the
recent Supreme Court decision and Texas’ decision to not expand
Medicaid eligibility, Medicaid may not be a coverage option for the
previously uninsured.32 Based on the large number of uninsured
Hispanics pre-ACA, it is likely the barriers to the private market,
such as affordability, will remain. As such, these individuals should
seek coverage through the State exchanges or their employers.
However, for Hispanics in Texas, these routes to coverage are not
certain either.
The ACA imposes monetary penalties on the uninsured to
encourage compliance with the Act’s provisions. Specifically those
who do not comply with the individual mandate must make a
“[s]hared responsibility payment” to the Federal Government.33 That
payment, which the Supreme Court has labeled a tax, is calculated as
a percentage of household income, subject to a floor based on a
specified dollar amount and a ceiling based on the average annual
premium the individual would have to pay for qualifying private
health insurance.34 The Act provides the penalty will be paid to the
29
See Editorial, A Glitch in Health Care Reform, N. Y. TIMES, Aug. 26, 2012, at SR10 available at
http://www.nytimes.com/2012/08/26/opinion/sunday/a-glitch-in-health-carereform.html?_r=1&src=recg.
30
26 U.S.C. § 5000A(a) (2010).
31
26 U.S.C. § 5000A(f).
32
Witte, supra note 23.
33
34
26 U.S.C. § 5000A(b)(1).
26 U.S.C. § 5000A(c).
110
HOUS. J. HEALTH L. & POL’Y
Internal Revenue Service with an individual’s taxes and “shall be
assessed and collected in the same manner” as tax penalties.35 It is
notable that some individuals who would be subject to the mandate
are exempt from the penalty36—for example, those with incomes
below a certain threshold37 and members of Indian tribes.38
As such, individual non-compliance with the Act will be
discouraged, but as the next section of this article develops, accessible
routes to health coverage may not be available. This means the ACA
non-compliance penalties may be imposed on those who never had a
viable health care coverage route either before or after the ACA.
Alternatively, if those who remain uninsured after the Act is
implemented have incomes below the penalty assessment threshold,
and they are thus not assessed the penalty, they may be less inclined
to comply with the Act. Broad risks pools are essential to the success
of the ACA.39 Either outcome results in a systemic inefficiency.
a. Employer
One option for attaining health coverage is through an
individual’s employer; however, Hispanics working for small firms
in Texas will not necessarily receive coverage via this route. Like the
individual penalties for ACA non-compliance, some employers also
will face monetary penalties in the event their employees are not
covered a health plan. However, because the penalties structure for
employer non-compliance is based on the size of that employer, small
employers may not be hit with these penalties. Additionally, large
employers are only required to offer coverage to full-time, nonseasonal employees. Full-time employment is thus another requisite
35
36
37
26 U.S.C. § 5000A(g)(1).
Tax Penalties for Individuals Who Do Not Purchase Coverage, AM. COLL. PHYSICIANS (2011),
available at http://www.acponline.org/advocacy/where_we_stand/access/
internists_guide/vi6-tax-penalties-individuals-who-do-not-purchase-coverage.pdf.
26 U.S.C. §5000A(e)(1)(A) (“Any applicable individual for any month if the applicable
individual’s required contribution (determined on an annual basis) for coverage for the
month exceeds 8 percent of such individual’s household income for the taxable year
described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act.”).
38
26 U.S.C. § 5000A(e)(3).
39
Bowen, supra note 12.
KASI CHADWICK
111
for government mandated, employer coverage.40
First, even before the ACA Hispanics finished second to last in
holding jobs that typically furnish health care benefits.41 Nationally,
the most common types of employment for the Hispanic population
include: sales and office work; employment in the service industry;
production, transportation, and material moving; construction; and
Traditionally, these sectors
farming, fishing, and forestry.42
infrequently offer health insurance to their employees43—this is
particularly true among recent immigrants.44
While the ACA contemplates employer-provided coverage, an
employer’s obligation to provide insurance is different depending on
the classification of that employer as small or large.45 First, the ACA
40
Full time employment is another area in which Hispanics trail other ethnicities. See
Household Data Annual Averages, BUREAU OF LABOR STATISTICS (2011), available at
http://www.bls.gov/cps/cpsaat08.pdf.
41
U. CAL., BERKELEY, ACCESS TO HEALTH CARE FOR LATINOS IN THE U.S. FACT SHEET 1, (2010),
available at http://www.binationalhealthweek.org/uploads/accesstohealthcare_
factsheet.pdf (providing that Hispanics finished second to last in filling management
professional and related occupations).
42
PETER FRONCZEK & PATRICIA JOHNSON, U.S. CENSUS BUREAU, OCCUPATIONS: 2000 6-7 (2003),
available at http://www.census.gov/prod/2003pubs/c2kbr-25.pdf.
43
U. CAL., BERKLEY, ACCESS TO HEALTH CARE FOR LATINOS IN THE U.S. FACT SHEET (October
2010), available at http://www.binationalhealthweek.org/uploads/accesstohealthcare_
factsheet.pdf (“[S]ome of the major industries that provide significant employment
opportunities for the U.S. Latino labor force include agricultural, manufacturing,
construction, and service sectors which are not only low paying industries, but also less
likely to provide health insurance coverage and other employer sponsored benefits for their
employees.” (citing X. Castañeda et al., Migration, health & work: Facts behind the myths, THE
HEALTH INITIATIVE OF THE AMERICAS (2007)).
44
CLAUDIA L. SCHUR & JACOB FELDMAN, THE PROJECT HOPE CENTER FOR HEALTH AFFAIRS,
RUNNING IN PLACE: HOW JOB CHARACTERISTICS, IMMIGRANT STATUS, AND FAMILY STRUCTURE
KEEP HISPANICS UNINSURED 10 (2001), available at http://web02.commonwealthfund.org/
~/media/Files/Publications/Fund%20Report/2001/May/Running%20in%20Place%20
%20How%20Job%20Characteristics%20%20Immigrant%20Status%20%20and%20Family
%20Structure%20Keep%20Hispanics%20Uni/schur_running_453%20pdf.pdf
(last visited Jan. 21, 2012); see also JOSH VALDEZ & ROBERT G. DE POSTADA, STRATEGIES FOR
IMPROVING LATINO HEALTHCARE IN AMERICA, available at http://www.borderhealth.org/
files/res_642.pdf.
45
LINDA J. BLUMBERG, TIMELY ANALYSIS OF IMMEDIATE HEALTH POLICY ISSUES, HOW WILL THE
PATIENT PROTECTION AND AFFORDABLE CARE ACT AFFECT SMALL, MEDIUM, AND LARGE
BUSINESSES?,4 (Aug. 2010), available at http://www.urban.org/UploadedPDF/412180ppaca-businesses.pdf.
112
HOUS. J. HEALTH L. & POL’Y
does not impose new coverage requirements on small employers
(fewer than 50 workers).46 While coverage for employees is not
required for a small business, it is encouraged.47 A small business
will be able to purchase health insurance plans through the statebased Small Business Health Options Program (SHOP), and will
receive a tax credit of up to 35% (up to 25% for non-profits) to offset
the costs of providing coverage to employees. This credit will
increase in 2014 to 50% (35% for non-profits).48
The bulk of the employer burden under the ACA to provide
coverage to employees falls on the large employer;49 however, it is
unlikely large employers will be substantially affected by ACA
penalties as most large employers already offer health coverage to
their employees. According to the Medical Expenditure Panel
Survey-Insurance Component, 9 percent of employers with 100 or
more workers offered insurance in 2009.50 Large employers with 200
or more full-time workers that offer health care to their employees
will be required to automatically enroll all full-time employees in a
plan each year.51
However part-time employees should not hope to obtain
government mandated coverage via their employer. The employer
penalties are only initiated if at least one full-time employee52 obtains
coverage through an exchange and receives a premium credit.53 Thus,
46
Id. at 1; see also 42 U.S.C. § 18024(b)(3) (2010).
47
Blumberg, supra note 38, at 1.
48
Id.
49
Id.
50
Id.
51
Id. at 3.
52
An individual working 30 hours or more per week. I.R.C § 4980H(c)(4) (West 2011). Parttime employees are factored into the employer classification calculation but essentially do
not count as a full-employee. The hours worked by part-time employees are multiplied by
the number of part-time employees and divided by 120. Thus, part-time employees do not
count as full-employees in the small/large employer calculation, allowing a company who
wishes to skirt the ACA employer-provided coverage mandate to employ only part-time
workers.
53
HINDA CHAIKIND & CHRIS L. PETERSON, CONG. RESEARCH SERV., R41159, SUMMARY OF
POTENTIAL EMPLOYER PENALTIES UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE
ACT (PPACA) 1 (2010) available at http://www.ncsl.org/documents/health/
KASI CHADWICK
113
Hispanics working part-time may not receive coverage through the
employer-provided route. The same applies for seasonal workers.54
Health insurance may be out of reach for some—particularly low
and moderate-income families—if they are not offered health benefits
through their employer.55 In Texas, people making moderate and
low wages are much less likely to have job-based health insurance
coverage than those earning more.56 Further, as many Latinos tend to
work for small businesses,57 the structure of the ACA is especially
troubling.
b. Exchanges
“Exchanges” are insurance marketplaces that either a State or the
Federal government creates in order to facilitate the purchase of
coverage for both individuals and small businesses. It is not clear at
this point whether all States will participate.58 In Texas however, as
of July 9, 2012, Texas has decided not to create an exchange.59 As
such, Texans who wish to purchase coverage via an exchange will be
confined to the coverage offered in the Federal exchange
marketplace. Some believe this is a detriment to both the individual
EmployerPenalties.pdf.
54
Id. at 2 (claiming that an employer will only be assessed a penalty for a seasonal worker
receiving a premium credit if (1) the seasonal worker was working full-time when they
received the credit, and (2) the employer is considered a large employer even without the
seasonal worker).
55
THE HENRY J. KASIER FOUND., Focus on Health
http://www.kff.org/healthreform/upload/7962-02.pdf.
56
The Uninsured in Texas, TEX. MED. ASS’N, http://www.texmed.org/template.aspx?id=5517
(last visited Oct. 19, 2012).
57
Sandra Lilley, Supreme Court decision can impact health insurance for millions, say Latino
Advocates, NBC LATINO (Jun. 27 2012, 10:30 PM), available at http://nbclatino.com/2012/
Reform
(2010),
available
at
06/27/supreme-court-decision-can-impact-health-insurance-for-millions-say-latinoadvocates/ (citing Jennifer Ng’andu, a health policy director of the National Council of La
Raza, stating “[n]ine out of ten Latinos work in small businesses.”).
58
,State Action Toward Creating Health Insurance Exchanges, as of September 27, 2012, THE HENRY
J. KAISER FAM. FOUND., http://statehealthfacts.kff.org/comparemaptable.jsp?ind=962&cat=
17 (last visited October 13, 2012).
59
Letter from Rick Perry, Governor of Texas, to the Honorable Kathleen Sebelius, Secretary,
United States Department of Health and Human Services (July 9, 2012), available at
http://governor.state.tx.us/files/press-office/O-SebeliusKathleen201207090024.pdf.
114
HOUS. J. HEALTH L. & POL’Y
and the state.60
Offered only for purchase of coverage within an exchange, the
ACA provides for advanceable, refundable premium assistance
credits to limit the amount of money some individuals would pay for
premiums.61 The ACA makes premium credits available to those
whose income exceeds 133 percent of the Federal Poverty Line
(“FPL”) but does not exceed 400 percent FPL.62 Under PPACA, for
example:
a family of three just above 133% of the federal poverty line (FPL)—
that is, currently with annual income of $24,352—would be required to
pay 3% of its income toward premiums ($824 annually, if the proposed
premium subsidies were currently in effect). A family of three just
under 400% FPL ($73,240), where the premium subsidies end, would
be required to pay no more than 9.5% of its income in premiums
($6,958 annually, if the proposed premium subsidies were currently in
effect).63
Without the extension of Medicaid eligibility, those earning
below the FPL will not be eligible for subsidies.64 Because Congress
assumed these people would be eligible for Medicaid under the
provisions in the ACA,65 people in Texas who are below the federal
poverty line without children (a requirement to be Medicaid eligible
in Texas) will be severely disadvantaged.66
60
ERIC A. BOOTH & JIM DYER, TEXAS HEALTH EXCHANGE PLANNING SYMPOSIUM: PUBLIC INPUT
6 (Mar. 10, 2011), available at http://www.tdi.texas.gov/health/
documents/symposiumreport.pdf.
AND PERSPECTIVES
61
Affordable Care Act, 26 U.S.C.A. § 36B (West 2011).
62
Id.
63
CHRIS L. PETERSON & THOMAS GABE, CONG. RESEARCH SERV., HEALTH INSURANCE PREMIUM
CREDITS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA) (2010), available at
http://www.ncsl.org/documents/health/HlthInsPremCredits.pdf.
64
Federal tax credits and subsidies will not be available for Texans with incomes below the
FPL because the credits and subsidies are only available to people with incomes between
100 and 400 percent of the FPL. This means the uninsured above poverty could receive
financial assistance, but those below poverty will not.
65
Maura Calsyn & Emily Oshima Lee, Interactive Map: Why the Supreme Court’s Ruling on
Medicaid Creates Uncertainty for Millions, CTR. FOR AM. PROGRESS (July 5, 2012)
http://www.americanprogress.org/issues/2012/07/medicaid_expansion_map.html
66
GENEVIEVE M. KENNY, ET AL., URBAN INST, OPTING OUT OF MEDICAID EXPANSION UNDER THE
ACA: HOW MANY UNINSURED ADULTS WOULD NOT BE ELIGIBLE FOR MEDICAID? 1 (July 5,
2012), available at http://www.urban.org/UploadedPDF/412607-Opting-Out-of-the-
KASI CHADWICK
115
Further, even with the subsidies, the cost of insurance may still
not be affordable for some low-income families.67 These tax credits
are to be given to those who would otherwise not have had access to
affordable care. A premium contribution is deemed affordable when
it does not exceed 9.5 percent of the worker’s household income.
However, as the New York Times recently noted, this calculation is
based on individual coverage for the individual worker alone.68
Family coverage is much more expensive. Citing a recent Kaiser
survey,69 it does not appear the expected premium contribution for
low-income families ($4,129) will be affordable to low-income
workers.70 As such, attaining coverage through the exchanges,
especially for those seeking family coverage, may not be an option for
low-income individuals.
c. Implications
Though the ACA does attempt to provide affordable health care
access, due to the ACA “glitches,” many Hispanics may still be left
out of the system. As the Texas Medical Association notes, those
without coverage post-ACA will probably continue to “delay seeking
needed primary care services and end up in the emergency room
with a preventable condition (at a much higher cost to the
community), and subsequently, are absent from work for extended
periods contributing to a loss of productivity and increased cost to
local employers and do not contribute to the tax base as
substantially.”71 Even after the ACA is implemented, because of
Medicaid-Expansion-Under-the-ACA.pdf.
67
See JONATHAN GRUBER & IAN PERRY, THE COMMONWEALTH FUND, REALIZING HEALTH CARE
REFORM’S POTENTIAL: WILL THE AFFORDABLE CARE ACT MAKE HEALTH INSURANCE
AFFORDABLE? (April 2011), available at http://www.commonwealthfund.org/~/media/
Files/Publications/Issue%20Brief/2011/Apr/1493_Gruber_will_affordable_care_act_
make_hlt_ins_affordable_reform_brief_v2.pdf.
68
Editorial, A Glitch in Health Care Reform, N.Y. TIMES, Aug. 25, 2012, available at
http://www.nytimes.com/2012/08/26/opinion/sunday/a-glitch-in-health-carereform.html?_r=1&src=recg.
69
THE KAISER FAM. FOUND. & HEALTH RES. & EDUC. TRUST, EMPLOYER HEALTH BENEFITS - 2011
ANNUAL SURVEY, available at http://ehbs.kff.org/pdf/2011/8225.pdf.
70
71
Editorial, supra note 60.
DAVID C. WARNER & PABLO B. SCHNEIDER, POLICY RESEARCH PROJECT ON CROSS-BORDER
HEALTH INSURANCE, CROSS-BORDER HEALTH INSURANCE: OPTIONS FOR TEXAS 155 (2004),
116
HOUS. J. HEALTH L. & POL’Y
these “glitches,” economic barriers to health access may exist for
Hispanics in Texas. While only a forecast at this juncture, based on
previous research, it appears these predictions may become reality.
III. LEARNING FROM MASSACHUSETTS REFORM
While only projections can be made as to the success of health
reform in Texas, reform in Massachusetts (“Chapter 58”) was fully
implemented in 2006. As Chapter 58 subsequently served as a model
for the ACA,72 it is particularly relevant to projecting the success of
the ACA elsewhere.
As a result of Chapter 58, Massachusetts has achieved the highest
rate of health insurance coverage in the nation.73 While Chapter 58
reduced the number of uninsured, coverage disparities remain
between Hispanics and other ethnicities.74 Even after the reform,
one-third of Spanish-speaking Hispanics still did not have a personal
While non-Hispanic whites and English-speaking
provider.75
Hispanics had similar rates of having a personal provider after
Chapter 58, Spanish-speaking Hispanics had a significantly lower
rate.76 Ultimately cost and cultural difficulties were barriers to
effective implementation of the Chapter 58 reforms at to Hispanics in
Massachusetts.77
Interviews conducted78 further explain why Massachusetts
available at http://www.utexas.edu/lbj/chasp/publications/downloads/Cross_Border_
Health_Insurance.pdf.
72
James Maxwell et al., Massachusetts' Health Care Reform Increased Access to Care for Hispanics,
but Disparities Remain, 30 HEALTH AFF. 1451 (2011).
73
Id. at 1451; see LEIGHTON KU, ET AL., HOW IS THE PRIMARY CARE SAFETY NET FARING IN
MASSACHUSETTS? COMMUNITY HEALTH CENTERS IN THE MIDST OF HEALTH REFORM 1, 6, 8 (The
Kasier Commission on Medicaid and the Uninsured 2009) available at
http://www.kff.org/healthreform/upload/7878.pdf (tracking the effect Chapter 58 had on
community health centers in Massachusetts).
74
Maxwell, supra note 72, at 1452.
75
Id. at 1455 (having a personal health care provider indicative of access to care).
76
Id.; see Exhibit 3.
77
78
Id. at 1453-56.
Id. at 1452-53. To measure the effectiveness of Chapter 58 implementation, Maxwell
studied data collected by a state-based telephone survey on health-related topics. Those
KASI CHADWICK
117
Hispanics continued to be less likely to have a regular source of care
and why cost remained a significant barrier. Those interviewed cited
difficulty in finding a provider with the appropriate language skills
and cultural competence.79 Additionally, low-income Hispanics with
public coverage were disadvantaged in finding a provider because
many providers began to only accept patients with private
insurance.80 In short, Chapter 58 implementation drove up the
demand for physicians and care centers that could provide culturally
sensitive care, and that demand outpaced the supply. Culturally
sensitive providers in Massachusetts were difficult to find and had
long waiting lists.81
Similar results have been found elsewhere.82 It is estimated that
up to “one-third of Latinos have difficulty communicating with their
physicians.”83 According to the Valdez/De Posada study,”[m]any
have trouble reading and understanding written information in their
doctors’ offices, omit medications, miss office appointments and rely
on hospital emergency departments for their general healthcare.”84
surveyed were among people ages 18 or older, conducted in English and Spanish, and
oversampled cities with a high proportion of minority populations, especially Hispanic
communities.
The survey gathered information concerning compliance with the
Massachusetts’ mandate for health insurance coverage, the process of obtaining coverage,
perceptions of health insurance affordability, the meaning of insurance coverage, the
difficulties in maintaining coverage, and the use of insurance once enrolled. The Chapter 58
study also collected data using focus groups and twenty in-depth interviews with newly
insured Hispanics whose income was 150-300 percent of the federal poverty level. Id. at
1452-1453.
79
Id. at 1456. (“Another challenge for Hispanics was finding a provider with whom they felt
comfortable discussing sensitive health issues. Our focus-group participants reported that
they would have preferred to see Spanish-speaking providers instead of relying on
interpreters, but such providers were difficult to find and had long waiting lists.”).
80
Id. (“One Spanish-speaking participant reported obtaining health insurance coverage but
not using it because she could not find a provider…She said that the hospital she usually
visited did not accept her new insurance, so she had to change providers. Then she had to
wait for an appointment with her new primary care physician. Another Spanish-speaking
woman complained that she had to wait four months to see her new physician…”).
81
82
Id.
See JOSH VALDEZ & ROBERT G. DE POSADA, STRATEGIES FOR IMPROVING LATINO HEALTHCARE
AMERICA: REPORT OF THE LATINO HEALTHCARE TASKFORCE, available at
http://www.borderhealth.org/files/res_642.pdf.
IN
83
84
Id. at 18.
Id. at 7.
118
HOUS. J. HEALTH L. & POL’Y
Alternatively, when Spanish-speaking patients are served by Spanish
speaking doctors, the patients “tend to ask more questions about
their health, have higher levels of satisfaction and have better recall
of their physician’s recommendations.”85
Finally, financial barriers existed even after enrollment in a
health plan.86 Even after obtaining coverage, Hispanics in the study
reported reluctance to see their providers because of copayment fees
and costs of medication. Some respondents noted confusion as to
what was covered by the premium. According to the Maxwell study,
“[t]he confusion about what costs are covered [by an insurance
premium] may influence whether or not people decide to keep
paying their insurance premiums.”87
IV. CROSS-BORDER HEALTH MODELS: A USEFUL TOOL
One possible solution to both the cost and cultural problems on
the Texas health care horizon is crafting legislation to allow for crossborder health models (“CBHM”).
Bustamente has noted, in
California, where CBHM are legal, the future of these plans, “depend
on whether [CBHM are] effective at actually offering better care for
those who are currently underserved, even though they have
insurance, and also whether it is effective at reducing costs.”88 As
noted above, in Texas, there may be more uninsureds, and it is likely
these uninsureds will be Hispanics.
Previous studies suggest those with access to the Mexican health
market utilize it when afforded the opportunity.89 A 2003 study
85
Id.
86
Maxwell, supra note 72, at 1456.
87
Id.
88
Lisa Zamosky, Room for Growth in California’s Cross-Border Insurance, CAL. HEALTHLINE
(April 23, 2010), http://www.californiahealthline.org/features/2010/room-for-growth-incalifornias-crossborder-insurance.aspx#ixzz23kXn2tGr.
89
Arturo Vargas Bustamante, et al., Willingness to Pay for Cross-Border Health Insurance Between
the United States and Mexico, 27 HEALTH AFFAIRS 169 (2008), available at
http://content.healthaffairs.org/content/27/1/169.full.html; WARNER & SCHNEIDER, supra
note 71.
KASI CHADWICK
119
tracked cross-border health usage in the El Paso Metropolitan Area.90
The researchers concluded CBHM would be an economically and
culturally useful addition to the chronically uninsured in the region.
91
Though the vast number of uninsured Hispanics do not
necessarily reside along the U.S./Mexico border,92 El Paso, is one of
the least insured major cities in the U.S.93 In 2003, one of every three
non-elderly residents living in El Paso was uninsured compared to
one in seven nationwide.94 In 2010, it was estimated that 28 percent
of the population was uninsured.95 Given that around 82 percent of
El Paso is Hispanic,96 it is thus likely the majority of these uninsured
are from Hispanic descent.
Additionally, El Paso residents will not likely receive health care
coverage from their employer.
The 2000 report by the
Commonwealth Fund and UCLA found that 67 percent of nonelderly U.S. residents in the 85 surveyed major metropolitan regions
were covered by employer-based health insurance.97 In El Paso
County, on the other hand, just 49 percent of non-elderly residents
had employer-based health insurance, ranking El Paso County last of
the 85 metropolitan areas in the study for job-based health insurance
coverage.98 It has been estimated that 45 percent of the gainfully
90
WARNER & SCHNEIDER, supra note 71, at 106.
91
Id. at 243-44.
92
93
See The Uninsured in Texas, TEX. MED. ASS’N, http://www.texmed.org/template.aspx?id=
5517 (stating that “In Texas, 35 of the state's 254 counties account for 80 percent of the
uninsured. A common misconception is that the uninsured are concentrated in the counties
along the Texas - Mexico border. Texas’ 28 largest cities, including Houston, Dallas, San
Antonio, Austin, Ft. Worth and El Paso, had a greater percentage of their population
without insurance than the collective United States”).
WARNER & SCHNEIDER, supra note 71, at 107.
94
Karen Brandon & Jeff Zeleny, Uninsured in America, CHICAGO TRIBUNE, January 31, 2003, at
1, available at http://articles.chicagotribune.com/2003/02/31/news/0301310394_1_
universal-healh-care-system-health-care.
95
The Uninsured in Texas, TEX. MED. ASS’N, http://www.texmed.org/template.aspx?id=5517.
96
Diana Washington Diaz, Hispanics Grow to 82 Percent of County Population, EL PASO TIMES,
Feb. 18, 2011, available at http://www.elpasotimes.com/news/ci_17418626.
97
98
WARNER & SCHNEIDER, supra note 71, at 107.
. Id.
120
HOUS. J. HEALTH L. & POL’Y
employed population in El Paso was not offered health insurance
coverage by their employers.99 It is further estimated that 80 percent
or more of those workers are Mexican or Mexican-American.100
As noted above, the health care reforms do not heavily
encourage small employers to provide coverage to their employees,
thus compounding what already was a coverage deficiency in the El
Paso area. Pre-ACA, small employers in the region were not likely to
provide coverage to their employees.101 In a 1999, 636 businesses
were surveyed, and only 52 offered a health insurance plan.102
Traditional plans are particularly ineffective for those employees
living in Juarez or employees who have undocumented children as
they could not participate in a health plan even if one was offered.103
For all of the above, Warner and Schneider conclude El Paso
could still be a viable market for cross-border products.104 In fact, at
the time of the study, limited cross-border insurance activity already
existed in El Paso/Juarez. At the time of the study, at least one El
Paso based TPA had 600 Mexican physicians in a 25-year-old
network.105 It is estimated that up to 20 percent of enrollees using the
network opt to get care in Mexico.106 In fact, Warner and Schneider
found at least two hospitals in Juarez to already accept U.S.
insurance.107
V. BARRIERS: A VOCAL OPPOSITION
Though there is a demand for cross-border health models, there
is a vocal opposition in some members of the El Paso medical
community who express concern about the quality of health care in
99
Id.
100
Id.
101
Id. at 116.
102
Id. at 116 citing FN 136.
103
Id. citing footnote 137.
104
WARNER AND SCHNEIDER, supra note 71, at 134.
105
Id.
106
Id.
107
Id. at 135.
KASI CHADWICK
121
Juarez and about the possibility of losing business to Mexican
providers.108 Opponents of these plans also claim this kind of
international competition promotes a “race to the bottom.”109 They
claim that consumers will be attracted to the least costly plan even
when their medical needs may require wider coverage.110
Furthermore, many comparative studies have been conducted
examining the quality of medical care between the United States and
Mexico.111 Some argue better care exists in the United States,112 while
others disagree.113 How quality care is defined is thus open to
interpretation on many fronts.
In 1999, Superior Health Plans, one of the largest HMOs in the El
Paso area “felt .there was a need for a cross-border product and a
market that would be receptive to a cross-border plan.”114 In
response, two Texas legislators, Rep. Haggarty (R-El Paso) and Rep.
Olivera (D-Brownsville), crafted a bill to explore the possibilities of a
cross-border health product, however, it was not passed.115
Additionally, the opposition to the Texas bill noted a cross-border
plan in El Paso would reduce the number of patients receiving care in
El Paso.116 Aside from the projected financial loss to the doctors, the
opposition noted this patient loss would in turn encourage doctors to
practice in other areas, thus further decreasing access to care.117
With the advent of the ACA, if Texas ACA implementation
108
109
Id.
Phil Galewitz & Lexi Verdon, FAQ: Selling Health Insurance Across State Lines, (Jan. 25, 2011),
http://www.kaiserhealthnews.org/Stories/2010/September/30/selling-insurance-acrossstate-lines.aspx.
110
Id.
111
Id.
112
ELIZABETH DOCTEUR & ROBERT A. BERENSON, TIMELY ANALYSIS OF IMMEDIATE HEALTH
POLICY ISSUES, HOW DOES THE QUALITY OF U.S. HEALTH CARE COMPARE INTERNATIONALLY?
(Aug. 2009), available at http://www.urban.org/uploadedpdf/411947_ushealthcare_
quality.pdf.
113
Chris Hawley, Mexico’s Health Care Lures Americans, USA TODAY, August 1, 2009, available at
http://www.usatoday.com/news/world/2009-08-31-mexico-health-care_N.htm.
114
WARNER & SCHNEIDER, supra note 71, at 117.
115
Id.
116
Id. at 118.
117
Id.
122
HOUS. J. HEALTH L. & POL’Y
follows Chapter 58 trends, the concern of patient loss to other
markets may be moot. As seen in Chapter 58 reform, many doctors
began taking only private insurance.118 In implementing a CBHM in
the El Paso area, it is likely El Paso will see an influx of doctors
following suit. Thus, care may not even be offered to these Hispanics
in this area post-ACA.
Regardless of these political positions, without authorization
from the Texas state legislature, many cross-border products will
remain illegal. Several reforms would be necessary.119 First, Texas
Insurance Code defines “physician” as a doctor who is licensed to
practice medicine in Texas.120 In California, the law does not hold
Mexican health care providers to the same standards as California
providers.121 According to the Health Policy Monitor:
[t]he plans require that physicians be licensed in Mexico and meet any
specialty board requirements.The companies regularly audit the
services, and patients can make complaints through California
regulators.122
According to the California Department of Managed Health
Care, the office has received “few complaints about the plans.”123
If these reforms were implemented, a previous study suggests a
market demand would be filled. At least one U.S. insurance
company has expressed interest in selling a cross-border product in
El Paso:
Centene seriously considered creating a cross- border product a few
years ago and supported legislation to license cross-border plans in
Texas; however, the company is unwilling to pursue cross-border
products until their legality is clearly defined.124
118
119
Maxwell et al., supra note 10, at 1456.
WARNER & SCHNEIDER, supra note 71, at 244.
120
Id. (“the Texas Insurance Code (TIC) defines the term "physician" to mean only doctors
who are licensed to practice medicine in Texas”).
121
ANKE THERESE SCHULZ & CAROL MEDLIN, HEALTH POLICY MONITOR, CROSS-BORDER HEALTH
CARE PLANS 4 (2006), available at http://www.hpm.org/us/d7/4.pdf.
122
Id.
123
WARNER AND SCHNEIDER, supra note 71, at 55.
124
Id. at 135.
KASI CHADWICK
123
In short, there seems to be a demand for cross-border health
products that the legislature has the tools to satisfy. With the advent
of the ACA, and Texas’ response to its implementation, cross-border
products and other inventive health models may be necessary to
include Texans in the health care system.
VI. EXISTING CROSS-BORDER MODELS
Cross-border health products have been implemented in the
United States. First, inter-state plans existed before and within the
ACA. Secondly, cross-border programs are being explored to solve
other implementation problems of the ACA.
a. Cross-border Insurance Inter-State: A Model for
International Implementation
Just as regional exchanges make sense in large metropolitan
areas that cross state boundaries,125 CBI plans also make sense for the
same reasons. Residents may reside in one jurisdiction but work and
obtain health insurance in another. As the private health insurance
market stands today, insurers make adjustments in order to
effectively capture these types of individuals. For example, there are
two existing Blue Cross Blue Shield (BCBS) plans that operate in
Kansas.
The Kansas BCBS plan operates statewide with the
exception of the Kansas City metropolitan area.126 The Kansas City
BCBS provides coverage only in the Kansas City, Missouri
metropolitan area and is licensed in both Kansas and Missouri.127
In 2008 Rhode Island created a regional health insurance
125
LINDA J. BLUMBERG, TIMELY ANALYSIS OF IMMEDIATE HEALTH POLICY ISSUES, MULTI-STATE
HEALTH INSURANCE EXCHANGES, (April 2011), available at http://www.rwjf.org/files/
research/72109multistateexchanges201104.pdf.
126
Company Info – Service Area, BLUE CROSS BLUE SHIELD OF KANSAS,
http://www.bcbsks.com/AboutUs/CompanyInfo/service_area.htm (last visited Oct. 20,
2012).
127
See Provider Services – Glossary of Health Insurance Terms, BLUE CROSS BLUE SHIELD OF
KANSAS, http://www.bcbsks.com/CustomerService/Providers/faqs/glossary/B.htm (last
visited Oct. 20, 2012).
124
HOUS. J. HEALTH L. & POL’Y
market.128 Wyoming followed suit in 2010 voicing the intent to create
multi-state reciprocal agreements to lessen healthcare costs by doing
away with duplicative legislation.129 And finally, in 2011, Georgia
signed into law Insurance HB 47 which allows for the sale of
individual health coverage if, among other requirements, the plan is
approved in another state and has a basic minimum of coverage.130
As such these types of plans are not unheard of, and in fact, the
legislatures who have enacted inter-state plans acknowledge the
inefficiencies of systems without this type of reciprocity. The same
could be said for a system in the U.S. that fails to work in cooperation
with a substantially less expensive Mexican healthcare market.
b. Salud Migrante
In Texas, undocumented individuals are almost three times as
likely to be uninsured as native U.S. citizens.131 Immigrants, many of
whom are Hispanics, often work in economic sectors less likely to
offer health insurance than others, such as construction.132 Due to the
high number of undocumented immigrants in Texas, and because
those seeking care in emergency rooms tend to be undocumented, it
is unclear how effective the cost-cutting measures of the ACA will be
in practice.
A CBHM called Salud Migrante may allow undocumented
Mexicans access to care in the US. In 2008, it was proposed as a
model for expanding binational health care coverage among
uninsured Mexican immigrants residing in the United States.133
Though only in the pilot program stages, Salud Migrante provides
128
129
Richard Cauchi and Katie Mason, National Conference of State Legislatures, Allowing the
Purchase of Health Insurance from Out-of-State Insurers, http://www.ncsl.org/issuesresearch/health/out-of-state-health-insurance-purchases.aspx (last updated August 2012).
Id.
130
Ga. State Univ. Law Review, Insurance HB 47, 28 GA. ST. U. L. REV. 35, 35-36 (2002), available
at http://digitalarchive.gsu.edu/gsulr/vol28/iss1/4.
131
The Uninsured in Texas, TEX. MED. ASS’N (June 14, 2012, 4:18 PM), http://www.texmed.org/
template.aspx?ide=5517#financial.
132
133
Id.
Arturo Vargas Bustamante et al., United States-Mexico Cross-Border Health Insurance
Initiatives: Salud Migrante and Medicare in Mexico, 31 REV PANAM SALUD PUBLICA 74, 75
(2012), available at http://www.scielosp.org/pdf/rpsp/v31n1/11.pdf.
KASI CHADWICK
125
Mexican guest workers with ambulatory and emergency service
coverage in the United States (through community clinics) and
comprehensive health care coverage in Mexico (through the
government-run health care program Seguro Popular).134
Most notably, the Plan provides this care at a cost of $30 per
worker per month assessed to the Mexican Government.135 If Salud
Migrante is successful, it could serve as a basic rubric for designing
plans that allow U.S. citizens to receive their health care in Mexico as
well.
c. Medicare in Mexico
Another demographic that may be potentially disadvantaged by
the ACA mandate are seniors retiring in Mexico. Medicare in Mexico
is an initiative developed to address the concerns of this group. It is
projected that up to 64% of the retired U.S. citizens living in Mexico
return to the United States for medical treatment, and those who
receive their medical treatments in Mexico assume all the costs for
those health care services.136 Under the individual mandate of the
ACA, these individuals will essentially be paying double for health
access: once in the United States and once again if receiving care in
Mexico.
Under Medicare in Mexico, Mexican providers that qualified for
Medicare certification would receive Medicare payments for services
provided to program beneficiaries. It has been estimated the
utilization of Mexican health services by Medicare enrollees, due to
the expanded reimbursement system, would result in considerable
savings to the Medicare program.137
134
Id.
135
Id.
136
Id. at 76.
137
Id. (citing POLICY RESEARCH PROJECT ON MEDICARE IN MEXICO, LYNDON B. JOHNSON SCHOOL
PUBLIC AFFAIRS, REP. NO. 156, MEDICARE IN MEXICO: INNOVATING FOR FAIRNESS AND COST
SAVINGS (2007), available at http://www.utexas.edu/lbj/chasp/publications/downloads/
Warner_Medicare_in_Mexico.pdf).
OF
126
HOUS. J. HEALTH L. & POL’Y
V. CONCLUSION
Cross-border health models would be a creative addition to the
ACA. Due to the systemic “glitches” in the ACA, many Hispanics
may remain uninsured. The success of price control of the ACA
depends on large risk pools.138 In Texas, the failure to include
Hispanics may be fatal to health cost control. As health care tends to
cost less in Mexico, if Americans would agree to receive their care
there, this may result in a considerable cost saving to the health
system as a whole.139 Previous study suggests there is a demand for
cross-border health products.140
Additionally, CBHM may make access to culturally sensitive care
more readily available for Hispanics. Previous study suggests
Hispanics who cannot speak English tend to remain uninsured even
after reforms.141 CBHM may help lessen this disparity.
Ultimately CBHM, though potentially beneficial, may not be
developed in Texas because of market concerns. On the other hand,
programs like Salud Migrante, because they target low-income
populations that are often uninsured, may not be met with staunch
opposition because of the high cost of treating uninsured individuals
with complex and expensive health care conditions is a serious
financial burden for safety net hospitals in the United States.142 As
such, in those states with larger uninsured populations, programs
like Salud Migrante may be welcomed by hospital administrators and
local authorities.143 If a cross-border component was included in the
exchanges for example, and if that cross-border plan catered to the
lower-income individuals who may be left out of health care reform,
such a plan may be met with less opposition.
However, if these barriers can be surmounted, the operational
138
See Garrett, supra note 12, at 1.
139
Bustamante, supra note 89, at 77.
140
See id. at 75.
141
Id.
142
143
Kevin Sack, Uninsured Immigrants; Public Hospitals’ Warnings, NEW YORK TIMES, Feb. 21
2012, available at http://query.nytimes.com/gst/fullpage.html?res=9F0CEEDF143CF936A2
5752C0A9669D8B63.
Bustamante, supra note 89, at 77.
KASI CHADWICK
127
side of instituting cross-border care may be minimal. First, research
conducted for Medicare in Mexico is establishing a standard for
measuring Mexican health care provider networks. To date, several
private Mexican health care facilities have initiated the process of
becoming Medicare-certified.144 This requires compliance with U.S.
regulations regarding safety standards, licensure, and malpractice
insurance.
Using the Medicare-certification rubric, a similar
certification criterion could be developed for the Medicaid program
as well.
Ultimately, the ACA is designed to give Americans control over
their health care.145 To further this goal, CBHM could be an
economically, and for some, a culturally relevant addition to the ACA
that should not be overlooked.
144
Id. (citing Richard C. Morais, Medicare in Mexico: American Retirees Push Congress to Allow
Medicare Benefits in Mexico, FORBES, Feb. 21, 2010, available at http://www.forbes.com/
2009/09/04/mexico-medicare-retirees-personal-finance-health-care.html).
145
The Affordable Care Act, Section by Section Title I. Quality, Affordable Health Care for All
Americans, HEALTHCARE.GOV, http://www.healthcare.gov/law/full/index.html.